Ohio early voting and White House meddling

posted at 11:01 am on August 5, 2012 by Jazz Shaw

Nothing is ever easy in Ohio, it seems, at least when it comes to politics and elections. The latest significant dust-up involves a pair of 2011 changes to the Buckeye State’s voting laws concerning early voting. Early voting previously was allowed right up until the day before the election, but has now been terminated on the Friday before. (Presumably to allow election officials more time over the weekend to wrap up the early vote process and get ready for the heavy traffic on Tuesday.) An exception was made for military members and their families.

That’s where the Obama administration comes in, filing suit in Ohio to toss out the law on the grounds that it is somehow unconstitutional. Mitt Romney wasn’t about to let a softball like that sail over the plate.

“President Obama’s lawsuit claiming it is unconstitutional for Ohio to allow servicemen and women extended early voting privileges during the state’s early voting period is an outrage. The brave men and women of our military make tremendous sacrifices to protect and defend our freedoms, and we should do everything we can to protect their fundamental right to vote. I stand with the fifteen military groups that are defending the rights of military voters, and if I’m entrusted to be the commander-in-chief, I’ll work to protect the voting rights of our military, not undermine them.”

To me this sounded pretty much like a no-brainer. We make exceptions in our legal codes for military members and their families in all manner of activities. Commissary and military exchange prices get very favorable tax treatment unavailable to civilians. Returning veterans qualify for all manner of government funded or subsidized benefits which can not be had by civilians. And rightly so! What kind of a wet blanket would come along and try to defend Obama’s law suit? Enter my friend, Doug Mataconis.

On the surface, there doesn’t seem to be any justification for this kind of disparate treatment. What is it that distinguishes a member of the military, or their family members, from regular voters to the extent that it should be acceptable to give them three extra days to vote early? It’s hard to see any plausible answer to that question that would withstand legal scrutiny, and the argument made by the Ohio Attorney General in his responsive pleading doesn’t strike me as persuasive:

Doug provides a lengthy legal analysis of it – not terribly surprising, since he’s a lawyer – which you are invited to read. One of his chief complaints comes from the state’s argument that we already make exceptions for military members overseas (and civilians as well) under the Uniform Overseas Citizens Absentee Voting Act.

The state argues that this is justified by the provisions of the UCOAVA and the general accommodations that have been given to military voters in the past, including extending the time for military ballots to be received beyond those of ordinary absentee ballots. As Court have noted, though, those accommodations are acceptable precisely because of the unique situation that deployed members of the military find themselves in being thousands of miles from home and unable to return home to vote.

This argument only really makes sense, it seems, if we’re talking about members of the military who are on the verge of being deployed, something they’re likely to know about well before the three days before Election Day unless we’re talking about a deployment made necessary by a foreign crisis of some kind.

I disagree with this on two major counts. First of all, as Doug concedes, the constitution gives the states broad discretion in how they structure their elections and when they are held. In Oregon, for example, you only vote by mail. And – again – we regularly make exceptions for the military. The argument that there will only be impediments to voting if the service member is overseas is invalid in my opinion. The options for civilian employees are far different from servicemen. As any service member or veteran knows, if your duty section is on call, you can’t simply wander away from your post to go vote. Civilian employers are unlikely to bar anyone’s chance to vote, if only for the public outcry which would follow. And duty rotation cycles can vary wildly in the military. There are plenty of combinations which would make it virtually impossible for soldiers, sailors and airmen to get to the polls in any given 48 hours.

What’s the real reason Obama’s team is trying to shoot down this law? Doug actually answers this question himself, though perhaps unintentionally.

It’s not hard to see a partisan reason behind the discrepancy, of course. As a general rule members of the military and their family members are more likely to vote Republican than Democrat so anything that encourages this particular voting group to vote when it’s convenient would potentially be of advantage to the GOP.

While I personally disagree that the military vote is as homogeneously Republican as is implied here, it’s certainly a common perception. But rather than blaming Ohio for trying to structure a law expanding military voting options to benefit the GOP, the court challenge from Obama is just as clearly an effort to limit military voting options – even to a tiny degree – to nullify that advantage. The whole thing stinks from beginning to end, as I see it, and Romney is right to call national attention to this lawsuit.

ADDITIONAL READING: Dr. James Joyner decides to focus on the question of whether the Obama lawsuit is trying to “take away voting days from the military” vs. “giving the extra voting days back to everyone else. Of course, “giving the days back” wouldn’t be the end result if the suit is successful, as it would simply strip the three extra days from everyone.

UPDATE: (Jazz) It is already being noted that one potential remedy through the courts could be to extend the three days of voting back to everyone rather than taking it away from the exempted groups. And yes, that’s possible, but the first linked article certainly implies that it’s the least likely scenario. We shall see when a judge gets hold of it.

UPDATE 2: (Jazz) Thanks to a lot of help in the comments, one of the first bits of analysis I read on this situation doesn’t seem to pan out. It originally looked as if this was an “either or” situation, where the final result could either be going back to everyone voting up until Monday, nobody voting after Friday, or leaving things as they are. But, as Ed already noted, it seems that going to a situation where nobody votes after Friday isn’t even an option. My bad. So the choices are to leave things as they are or wipe out the idea of curtailing any voting on Friday at all. So I suppose the next question is, how badly did the state need to cut off voting on Friday for logistical reasons? And would it make more sense to simply have every day be a voting day right through Tuesday?